I appreciate Rick's misgivings about my embrace of the Third Circuit's Solomon Amendment ruling, but his misgivings generate even deeper misgivings of my own. First, I agree that most law school faculties are not exactly bulwarks guarding against the collective imposition of contested moral norms -- on the contrary, they often function as the vanguard of the collective imposition itself. Nevertheless, I'm happy to welcome their support of subsidiarity whenever I can get it, even if it is unintentional or piecemeal. Whatever else the legal academy stands for, this case is a valuable implementation of subsidiarity.

Second, I agree that government funding can change the subsidiarity analysis, but it can't foreclose the analysis entirely. Especially in areas like education and health care, where government funds are a non-negotiable element of market viability, allowing funding to trump divergent messages and identities will eviscerate subsidiarity. If we're willing to allow the government to use its money to trump a law school's defiance of the military's policy on gays, are we also willing to allow the government to pull its funds from hospitals that refuse to perform abortions? I don't claim to have an easy answer -- indeed, I believe that the government should be empowered to promote or discourage certain messages, and the most obvious tool for doing so is its provision of funds. But if funding can justify otherwise unacceptable top-down impositions of contested moral norms across the board, I'm afraid we've created an exception that will swallow subsidiarity's (already tenuous) rule.

I share my friend Rob's enthusiasm for the principle of subsidiarity, and for the principle's diversity- (or, "divisions"-) enhancing effects. I am sympathetic to Rob's efforts, on this blog and in his important published work, to distinguish "subsidiarity" from devolution, federalism, or the agenda of the political right. Clearly, Rob is right to remind us that to embrace the principle of subsidiarity is to embrace the possibility of misguided local policy experiments and offensive private associations.

Nonetheless, I am not sure I agree with Rob's claim (below) that those of us who believe in subsidiarity, or who believe that the Boy Scouts case was rightly decided, must or should therefore "embrace[]" the Third Circuit's ruling in the Solomon Amendment case. First, I tend to doubt whether our elite law schools are, in fact, "functioning as subversive wrenches in the top-down enforcement of contested moral norms." In fact, I am confident that the same groups and advocates who are challenging the Solomon Amendment on "expressive association" grounds also support efforts by the state to impose -- in "top-down" fashion -- their own "take" on "contested moral norms." Indeed, I am quite familiar with the anti-Solomon Amendment case that was filed by Yale Law School professors and students. In that case, the Amendment was strongly challenged -- on Dale and "expressive association" grounds -- by eminent legal scholars who in other contexts forcefully reject the claim that private expressive associations have a First Amendment right to opt out of state-imposed anti-discrimination norms. My point, I suppose, is that those who genuinely embrace subsidiarity might not want to take comfort in the fact that, in this particular litigation, the side invoking subsidiarity-sounding arguments won.

Second, I think it is relevant that, in the Solomon Amendment context, we are dealing with conditions that the government is attaching to its own spending. That is, as I understand it, the Solomon Amendment does not, in fact, force law schools to endorse a message with which they disagree. Instead, it requires universities that accept funds under certain government programs to refrain from discriminating against the military when it comes to student employment. There is, of course, a subsidiarity lesson here: Private, expressive associations that hope to challenge or subvert the dominant orthodoxy should be careful about coming to depend almost entirely on government funding. As Justice Scalia put it, concurring in NEA v. Finley (1998), "avant-garde artistes such as [performance artist Finley] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie pay for it."

Rick

UPDATE: Professor David Bernstein has this post up over at the Volokh Conspiracy, in which he observes that "this seems like a good time to remind readers of the inconsistency of those law professors who strongly opposed giving the BSA an expressive association right to exclude gay scoutmasters, but became born-again believers in freedom of association when the Solomon Amendment case arose." See also this post, by Professor Orin Kerr, also at the Volokh Conspiracy. Professor Kerr states, "[w]hile I disagree with the existing law banning gays and lesbians from military service, I find myself rather puzzled by today's ruling by the Third Circuit that the Defense Department cannot enforce the federal law withholding funds from schools that ban on-campus military recuiting (aka the Solomon Amendment)."

William Stuntz, a distinguished professor at Harvard Law School, has posted some typically insightful thoughts over at Tech Central Station. (Readers might also want to check out this essay of his, "Law and the Christian Story," published a few years ago in First Things). In "Faculty Clubs and Church Pews", Stuntz remarks:

The past few months have seen a lot of talk about red and blue

America

, mostly by people on one side of the partisan divide who find the other side a mystery.

It isn't a mystery to me, because I live on both sides. For the past twenty years, I've belonged to evangelical Protestant churches, the kind where George W. Bush rolled up huge majorities. And for the past eighteen years, I've worked in secular universities where one can hardly believe that Bush voters exist. Evangelical churches are red

America

at its reddest. And universities, especially the ones in

New England

(where I work now), are as blue as the bluest sky.

Not surprisingly, each of these institutions is enemy territory to the other. But the enmity is needless. It may be a sign that I'm terminally weird, but I love them both, passionately. And I think that if my church friends and my university friends got to know each other, they'd find a lot to like and admire. More to the point, the representatives of each side would learn something important and useful from the other side. These institutions may be red and blue now. But their natural color is purple.

And, here is a passage that will -- I suspect -- warm Mark's heart:

Imagine a presidential campaign in which the two candidates seriously debated how a loving society should treat its poorest members. Helping the poor is supposed to be the left's central commitment, going back to the days of FDR and the New Deal. In practice, the commitment has all but disappeared from national politics. Judging by the speeches of liberal Democratic politicians, what poor people need most is free abortions. Anti-poverty programs tend to help middle-class government employees; the poor end up with a few scraps from the table. Teachers' unions have a stranglehold on failed urban school systems, even though fixing those schools would be the best anti-poverty program imaginable.

I don't think my liberal Democratic professor friends like this state of affairs. And -- here's a news flash -- neither do most evangelicals, who regard helping the poor as both a passion and a spiritual obligation, not just a political preference. . . . These men and women vote Republican not because they like the party's policy toward poverty -- cut taxes and hope for the best -- but because poverty isn't on the table anymore. In evangelical churches, elections are mostly about abortion. Neither party seems much concerned with giving a hand to those who most need it.

That could change. I can't prove it, but I think there is a large, latent pro-redistribution evangelical vote, ready to get behind the first politician to tap into it. (Barack Obama, are you listening?) If liberal Democratic academics believe the things they say they believe -- and I think they do -- there is an alliance here just waiting to happen.

Humility, love of serious ideas, commitment to helping the poor -- these are things my faculty friends and my church friends ought to be able to get together on. If they ever do, look out: American politics, and maybe American life, will be turned upside down. And all those politicians who can only speak in one color will be out of a job.

The Third Circuit has issued an interesting ruling prohibiting the federal government from enforcing the Solomon Amendment (which barred the federal government from providing funds to schools that obstructed military recruiting). Writing for the majority, Judge Thomas Ambro relied on the U.S. Supreme Court's 2000 decision in Boy Scouts of America v. Dale, in which the Court held that the Boy Scouts could not be legally required to accept an openly gay scoutmaster:

"Just as the Boy Scouts believed that 'homosexual conduct is inconsistent with the Scout Oath,' the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness," Ambro wrote.

"Just as the Boy Scouts maintained that 'homosexuals do not provide a role model consistent with the expectations of scouting families,' the law schools maintain that military recruiters engaging in exclusionary hiring 'do not provide a role model consistent with the expectations of,' their students and the legal community," Ambro wrote.

Likewise, Ambro said, while the Boy Scouts argued that they were aiming to "inculcate [youth] with the Boy Scouts' values -- both expressively and by example," the law schools, too, say they are aiming to "inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies."

Ambro noted that, in Dale, the justices held that an openly gay man's presence in the Boy Scouts "would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior."

Likewise, Ambro said, "the presence of military recruiters would, at the very least, force the law schools to send a message, both to students and the legal community, that the law schools 'accept' employment discrimination 'as a legitimate form of behavior.'"

Regardless of one's view of the Boy Scouts' policy, Dale should be applauded as an essential judicial support for the principle of subsidiarity; similarly, regardless of one's view of the legal academy's stance toward the military, it seems that the Third Circuit's ruling should be similarly embraced. Law schools, just like the Boy Scouts, are functioning as subversive wrenches in the top-down enforcement of contested moral norms.

According to a new CBS poll, only 16% of Americans believe that a pharmacist who opposes birth control should be able to refuse to sell birth control pills. Among Catholics, the number increases to a whopping 21%. The question ("Should pharmacists opposed to birth control be able to refuse to sell birth control pills?") is imprecise enough that it's unclear whether respondents were indicating their opposition to affirmative statutory protection for such exercises of conscience (precluding employment termination, etc.) or whether they actually mean that pharmacists should be legally required to dispense the pills. The difference is key, from a subsidiarity perspective. It's one thing to say that an individual pharmacist should have immunity from any negative repercussions when they defy the policy of the company that employs them (protecting conscience as a matter of individual empowerment); it's quite another to say that all pharmacists everywhere should be required by law to offer all services not prohibited by law, regardless of how morally objectionable those services might be (trumping conscience as a collective mandate). In any event, the poll numbers are an indication of how firmly grounded consumer autonomy is in modern Americans' understanding of social order. (Thanks to CT for the lead.)

Here's a fairly disturbing update on prospects for embryonic stem cell research in California. The lieutenant governor enthusiastically embraces it as "this century's Gold Rush." Indeed, according to the New York Times, the initative approved by voters creates

the California Institute for Regenerative Medicine, which will dole out roughly $300 million a year for 10 years in grants and loans to public and private entities pursuing stem cell studies. Final authority rests with the oversight panel, which will include representatives from most of the state's major medical schools, members of nonprofit research institutes, executives of commercial biotechnology firms and public members who are advocates for research in a range of diseases.

the governor, several constitutional officers and administrators of the University of California system to select the Independent Citizens Oversight Committee, which will supervise the institute. It also lays out the specific qualifications of the nonsalaried committee members, ensuring that there will be a mix of research scientists used to administering millions of dollars in grant money, business people and members of patient-advocate groups.

Conspicuously absent from either of these summaries of the "oversight panel" is any indication that the panel will include folks who might be inclined to exercise any meaningful degree of moral oversight. Maybe it is too much to expect them to muddy the clear waters of boundless scientific progress by injecting a naysaying religious voice, but how about some sort of religion-free ethicist? A philosopher? A medical ethicist? Gosh, even someone who once taught a business ethics course at the local community college would be preferable to a lineup of folks predisposed simply to facilitate widespread bellying up to the publicly-financed trough. (The San Fran Chroniclereports one critic's complaint that the panel "will be made up entirely of people who will stand to benefit from the research.") The panel's first member indicated that he and his colleagues will need to ensure that "the most appropriate infrastructure is put into place, the best science supported and the best people brought into this field." Simple enough. Good science by good scientists. What possibly could go wrong?

Has the voters' resounding approval (59% to 41%) of the initiative been equated with a collective judgment that ongoing embryonic stem cell research will pose no dilemmas on which morality-driven conversations might be appropriate? I'm happy to be corrected if, as a non-Californian, I'm missing out on some relevant aspect of the oversight panel, and I'd love to learn how the system will make room for moral engagement and discernment. Absent such capacity, it seems that "Gold Rush" is even more apt than the lieutenant governor knew.

This article describes the current controversy in the United Kingdom over what the British Pregnancy Advisory Service calls the "scandal" of the lack of late-term abortion "services." According to the Service's chief executive, Ann Furendi, "doctors and nurses [are] becoming more reluctant to work in this area. But she said there were very good reasons why some women left their abortions till late." She conceded, though, that the "work" is "unpleasant and difficult" and said that "doctors and nurses are only prepared to do it if they understand the reasons why women present late." The article continues: "Patrick Cusworth, from the charity LIFE, said it was no surprise that many doctors and nurses do not want to get involved in late abortions. He said: 'Many doctors that we have spoken to have indicated very deep misgivings about carrying out abortions of children that are perfectly healthy, and would have very good chances of surviving outside their mothers wombs if delivered at this particular point. The question is, if so many doctors are increasingly unwilling to carry these out, should be tolerating this procedure at all?'"

What is interesting, and even refreshing, to me about this story is that, apparently, neither "side" in the debate feels inspired or required by "the Constitution" or "the Court" to couch abortion-related arguments in terms of "fundamental rights", "liberty interests", "undue burdens", the sweet "mystery of life", or what Justice O'Connor had for breakfast. The legal regime and culture -- unlike ours -- appears to be one that permits compromise.

Scalia says religion infuses U.S. government and history

By VERENA DOBNIKAssociated Press Writer

November 22, 2004, 4:04 PM EST

NEW YORK -- U.S. Supreme Court Justice Antonin Scalia said Monday that a religion-neutral government does not fit with an America that reflects belief in God in everything from its money to its military.

An outspoken conservative, Scalia joined a gathering that included the chief judge of New York state, Judith Kaye, a member of this Orthodox synagogue where the late Supreme Court Justice Benjamin Cardozo had worshipped.

The discussion in the century-old edifice was lively.

"I have spent many private hours with Justice Scalia _ in print," said Kaye, who has led New York's highest court for almost a dozen years since she was appointed by Gov. Mario Cuomo, a liberal Democrat.

Scalia, 68, addressed the topic of government and its relationship to religion.

In the synagogue that is home to America's oldest Jewish congregation, he noted that in Europe, religion-neutral leaders almost never publicly use the word "God."

But, the justice asked, "Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America? I don't think so."

Also participating in the three-hour session was Shearith Israel's senior rabbi, Marc Angel, as well as prominent members of New York's Protestant, Roman Catholic and Muslim clergy. Speakers included the Rev. James Forbes Jr. of Riverside Church, the Rev. Arthur Caliandro of the Marble Collegiate Church and Imam Feisal Abdul Rauf, founder of the New York-based American Sufi Muslim Association, whose aim is to foster an American-Muslim identity.

Scalia told them that while the church-and-state battle rages, the official examples of the presence of faith go back to America's Founding Fathers: the word "God" on U.S. currency; chaplains of various faiths in the military and the legislature; real estate tax-exemption for houses of worship _ and the phrase "under God" in the Pledge of Allegiance.

Last year, Scalia removed himself from the Supreme Court's review of whether "under God" should be in the Pledge of Allegiance, after mentioning the case in a speech and complaining that courts are stripping God from public life.

"None of this is compatible with what we say when we express the so-called principle of neutrality," Scalia said.

He could be tapped as a possible nominee for chief justice should Chief Justice William Rehnquist step down because of his thyroid cancer.

Scalia was named to the Supreme Court in 1986 by President Reagan.

Since then, Scalia _ a Catholic raised in Queens and father of nine children, one a priest _ has become an anti-abortion hero to many in the American political right and a leading conservative voice on the court.

An "originalist," Scalia believes in following the Constitution as written by the Founding Fathers, rather than interpreting it to reflect the changing times.

"Our Constitution does not morph," he said Monday, deadpanning, "As I've often said, I am an originalist, I am a textualist, but I am not a nut."

Earlier this year, Scalia cast one of two dissenting votes in a 7-2 Supreme Court ruling that states may deny taxpayer-funded scholarships to divinity students.

At the time, Scalia wrote: "Let there be no doubt: This case is about discrimination against a religious minority."

This is a very early call for articles to be presented at the third annual symposium on Catholic Social Thought and the Law, to be held at Villanova in October 2005. The topic will be the legacy of John Courtney Murray for law and political theory. This will be an interdisciplinary conference including both law profs and political theorists. The papers will be eligible for publication in the Journal of Catholic Social Thought. By the way, we had a terrific conference on subsidiarity this semester; Rob Vischer's and Susan Stabile's papers from the conference are posted in the sidebar under their names. I will post some of the other papers as they go through the editing process. Feel free to email me if you have any questions about the Murray confab.

Continuing the immigrant/immigration theme, I'd like to recommend the newly released movie, "A Day Without a Mexican," which we watched last night. The back of the Blockbuster DVD jacket describes the movie: "The state of California is thrown into complete chaos after all of its Hispanic inhabitants mysteriously disappear!"